PROFESSIONALISM FOR LAWYERS

Transcription

1 PROFESSIONALISM FOR LAWYERS William Mann Mitchell, Allen, Catalano & Boda Co LPA 580 South High Street, Ste. 200 Columbus, OH Phone: (614) Fax: (614) WHAT CONSTITUTES A PROFESSION? In Professional Education: Some New Directions (1972), Professor Edgar H. Schein summarized the criteria that he believes define a profession. At page 8: 1. Is engaged in a full time occupation ; 2. Has strong motivation and a lifetime commitment to that career ; 3. Possesses a specialized body of knowledge and skills acquired during a prolonged period of education and training ; 4. Makes decisions on the basis of general principles or theories; 5. Is assumed to have a service orientation which implies an absence of self interest ; 6. Serves clients on the basis of the objective needs of the client, which means that professionals often must withhold moral judgments ; 7. Is assumed to know better what is good for the client than the client himself, and thus, even if the client is not satisfied, the professional will, in principle, permit only his colleagues to judge his performance ; 8. Forms professional associations that define criteria of admission, educational standards, licensing or other formal entry examinations, career liens within the profession and areas of jurisdiction ***.

2 9. Has knowledge assumed to be specific ; and 10. Ordinarily is not allowed to advertise or seek out clients. Most would agree that the overwhelming number of lawyers in Ohio meet criteria #1 - #9. Most would agree that few lawyers (or physicians, accountants, engineers, etc.) meet criteria # WHAT CONSTITUTES PROFESSIONALISM? There has been much debate as to whether the term professionalism, can be defined. We believe that the definition of professionalism for lawyers is as follows: A lawyer or judge is professional if the lawyer or judge has: (a) a genuine respect for our American system of justice; (b) a genuine respect for the legal profession; and (c) a sincere commitment to serve and promote both our system of justice and the legal profession. By respect, we mean to feel and show honor and esteem. Part of showing honor and esteem is to make legitimate, good faith criticisms whenever a lawyer or judge feels such criticisms are appropriate. Generally, such criticisms should be made with diplomacy and tact. 3. WHY PROFESSIONALISM IS CRITICAL TO MAINTAINING OUR AMERICAN SYSTEM OF JUSTICE Democratic governments only function when the people being governed consent to being governed. Such consent is only given when the public respects the government. Our courts are part of our democratic form of government. The American people will not recognize the legitimacy of the courts unless they respect the court system. They are much more likely to respect a court system that is populated by lawyers and judges who exhibit a high level of professionalism as opposed to a system populated by lawyers and judges who exhibit a low level or no professionalism. The United States Supreme Court made a substantially similar point in Planned Parenthood v. Casey (1992), 505 U.S At : The root of American governmental power is revealed most clearly in the instance of the power conferred by the Constitution upon the Judiciary of the United States, and specifically upon this Court. As Americans of each succeeding generation are rightly told, the Court cannot buy support for its decisions by spending money, and, except to a minor degree, it 2

3 cannot independently coerce obedience to its decrees. The Court s power lies, rather, in its legitimacy, a product of substance and perception that shows itself in the people s acceptance of the Judiciary as fit to determine what the Nation s law means, and to declare what it demands. Thus, lawyers and judges must take care to speak and act in ways that encourage people to respect the court system, and consent to its legitimacy. In other words, lawyers and judges must take care to speak and act professionally, and their failure to do so constitutes an assault on system of justice. 4. THE OHIO SUPREME COURT ACTS TO PROMOTE PROFESSIONALISM On February 3, 1997 the Ohio Supreme Court took action to promote professionalism among Ohio s bench and bar. Specifically, the Court promulgated the following: 1. Statement On Professionalism 2. A Lawyer s Creed 3. A Lawyer s Aspirational Ideals The Court later adopted a Judicial Creed of Professionalism. Further, the Court has mandated professionalism CLE for lawyers. Such CLE was discussed for judges. However, Ohio s judiciary vigorously fought against any CLE requirement. The judiciary s arguments against mandatory judicial CLE were based on several dubious arguments, including the nonsensical allegation that Ohio s judiciary has already achieved professionalism perfection, thereby rendering mandatory judicial CLE irrelevant. The Ohio Supreme Court has not adopted any CLE requirement for Ohio s judges, thereby substantially retarding the professionalism movement in Ohio. The Ohio Supreme Court s February 1997 professionalism promulgations: STATEMENT ON PROFESSIONALISM The Court created the Supreme Court Commission on Professionalism in order to address its concerns that trends were developing among lawyers in Ohio and elsewhere which emphasize commercialism in the practice of law and deemphasize our historical heritage that the practice is a learned profession to be conducted with dignity, integrity and honor as a high calling dedicated to the service of clients and the public good. These trends have been evidenced by an emphasis on 3

4 financial rewards, a diminishing of courtesy and civility among lawyers in their dealings with each other, a reduction in respect for the judiciary and our system of justice and a lessening of regard for others and commitment to the public good. As professionals, we need to strive to meet lofty goals and ideals in order to achieve the highest standards of a learned profession. To this end, the Court issues A Lawyer s Creed and A Lawyer s Aspirational Ideals which have been adopted and recommended for the Court s issuance by the Supreme Court Commission on Professionalism. In so doing, it is not the Court s intention to regulate or to provide additional bases for discipline, but rather to facilitate the promotion of professionalism among Ohio s lawyers, judges and legal educators. It is the Court s hope that these individuals, their professional associations, law firms, and educational institutions will utilize the Creed and the Aspirational Ideals as guidelines for this purpose. A LAWYER S CREED To my clients, I offer loyalty, confidentiality, competence, diligence, and my best judgment. I shall represent you as I should want to be represented and be worthy of your trust. I shall counsel you with respect to alternative methods to resolve disputes. I shall endeavor to achieve your lawful objectives as expeditiously and economically as possible. To the opposing parties and their counsel, I offer fairness, integrity, and civility. I shall not knowingly make misleading or untrue statements of fact or law. I shall endeavor to consult with and cooperate with you in scheduling meetings, depositions, and hearings. I shall avoid excessive and abusive discovery. I shall attempt to resolve differences and, if we fail, I shall strive to make our dispute a dignified one. To the courts and other tribunals, and to those who assist them, I offer respect, candor, and courtesy. Where consistent with my client s interests, I shall communicate with opposing counsel in an effort to avoid or resolve litigation. I shall attempt to agree with other counsel on a voluntary exchange of information and on a plan for discovery. I shall do honor to the search for justice. To my colleagues in the practice of law, I offer concern for your reputation and well-being. I shall extend to you the same courtesy, respect, candor, and dignity that I expect to be extended to me. 4

5 To the profession, I offer assistance in keeping it a calling in the spirit of public service, and in promoting its understanding and an appreciation for it by the public. I recognize that my actions and demeanor reflect upon our system of justice and our profession, and I shall conduct myself accordingly. To the public and our system of justice, I offer service. I shall devote some of my time and skills to community, governmental and other activities that promote the common good. I shall strive to improve the law and our legal system and to make the law and our legal system available to all. As to clients, I shall aspire: A LAWYER S ASPIRATIONAL IDEALS (a) (b) To expeditious and economical achievement of all client objectives. To fully informed client decision-making. I should: (1) Counsel clients about all forms of dispute resolution; (2) Counsel clients about the value of cooperation as a means towards the productive resolution of disputes; (3) Maintain the sympathetic detachment that permits objective and independent advice to clients; (4) Communicate promptly and clearly with clients; and (5) Reach clear agreements with clients concerning the nature of the representation. (c) To fair and equitable fee agreements. I should: (1) Discuss alternative methods of charging fees with all clients; (2) Offer fee arrangements that reflect the true value of the services rendered; (3) Reach agreements respecting fees with clients as early in the relationship as possible; (4) Determine the amount of fees by consideration of many factors and not just time spent; and (5) Provide written agreements as to all fee arrangements. 5

6 (d) (e) To comply with the obligations of confidentiality and the avoidance of conflicting loyalties in a manner designed to achieve fidelity to clients. To achieve and maintain a high level of competence in my field or fields of practice. As to opposing parties and their counsel, I shall aspire: (a) To cooperate with opposing counsel in a manner consistent with the competent representation of my client. I should: (1) Notify opposing counsel in a timely fashion of any canceled appearance; (2) Grant reasonable requests for extensions or scheduling changes; and (3) Consult with opposing counsel in the scheduling of appearances, meetings, and depositions. (b) To treat opposing counsel in a manner consistent with his or her professional obligations and consistent with the dignity of the search for justice. I should: (1) Not serve motions or pleadings in such a manner or at such a time as to preclude opportunity for a competent response; (2) Be courteous and civil in all communications; (3) Respond promptly to all requests by opposing counsel; (4) Avoid rudeness and other acts of disrespect in all meetings, including depositions and negotiations; (5) Prepare documents that accurately reflect the agreement of all parties; and (6) Clearly identify all changes made in documents submitted by opposing counsel for review. 6

7 As to the courts and other tribunals, and to those who assist them, I shall aspire: (a) To represent my clients in a manner consistent with the proper functioning of a fair, efficient, and humane system of justice. I should: (1) Avoid non-essential litigation and non-essential pleading in litigation; (2) Explore the possibilities of settlement of all litigated matters; (3) Seek non-coerced agreement between the parties on procedural and discovery matters; (4) Avoid all delays not dictated by competent representation of a client; (5) Prevent misuses of court time by verifying the availability of key participants for scheduled appearances before the court and by being punctual; and (6) Advise clients about the obligations of civility, courtesy, fairness, cooperation, and other proper behavior expected of those who use our system of justice. (b) To model for others the respect due to our courts. I should: (1) Act with complete honesty; (2) Know court rules and procedures; (3) Give appropriate deference to court rulings; (4) Avoid undue familiarity with members of the judiciary; (5) Avoid unfounded, unsubstantiated, or unjustified public criticism of members of the judiciary; (6) Show respect by attire and demeanor; (7) Assist the judiciary in determining the applicable law; and (8) Give recognition to the judiciary s obligations of informed and impartial decision-making. 7

8 As to my colleagues in the practice of law, I shall aspire: (a) (b) (c) To recognize and develop a professional interdependence for the benefit of our clients and the legal system; To defend you against unjust criticism; and To offer you assistance with your personal and professional needs. As to our profession, I shall aspire: (a) To improve the practice of law. I should: (1) Assist in continuing legal education efforts; (2) Assist in organized bar activities; (3) Assist law schools in the education of our future lawyers; and (4) Assist the judiciary in achieving objectives of A Lawyer s Creed and these Aspirational Ideals. (b) To promote the understanding of and an appreciation for our profession by the public. I should: (1) Use appropriate opportunities, publicly and privately, to comment upon the roles of lawyers in society and government, as well as in our system of justice; and (2) Conduct myself always with an awareness that my actions and demeanor reflect upon our profession. (c) To devote some of my time and skills to community, governmental and other activities that promote the common good. As to the public and our system of justice, I shall aspire: (a) (b) (c) To consider the effect of my conduct on the image of our system of justice, including the effect of advertising methods. To help provide the pro bono representation that is necessary to make our system of justice available to all. To support organizations that provide pro bono representation to indigent clients. 8

9 (d) (e) To promote equality for all persons. To improve our laws and legal system by, for example: (1) Serving as a public official; (2) Assisting in the education of the public concerning our laws and legal system; (3) Commenting publicly upon our laws; and (4) Using other appropriate methods of effecting positive change in our laws and legal system. On July 9, 2001, the Ohio Supreme Court adopted A Judicial Creed. It states: A JUDICIAL CREED For the purpose of publicly stating my beliefs, convictions, and aspirations as a member of the Judiciary or as a lawyer acting in a judicial capacity in the State of Ohio: I re-affirm my oath of office and acknowledge my obligations under the Canons of Judicial Ethics. I recognize my role as a guardian of our system of jurisprudence dedicated to equal justice under law for all persons. I believe that my role requires scholarship, diligence, personal integrity, and a dedication to the attainment of justice. I know that I must not only be fair but also give the appearance of being fair. I recognize that the dignity of my office requires the highest level of judicial demeanor. I will treat all persons, including litigants, lawyers, witnesses, jurors, judicial colleagues, and court staff with dignity and courtesy and will insist that others do likewise. I will strive to conduct my judicial responsibilities and obligations in a timely manner and will be respectful of others time and schedules. I will aspire every day to make the Court I serve a model of justice and truth. 9

10 It is respectfully submitted that, to some extent, the Ohio Judicial Creed is superfluous. That is because much of the Judicial Creed simply restates obligations that are already imposed on Judges by the Ohio Code of Judicial Conduct. For just one example, the Judicial Creed says, I will treat all persons *** with dignity and courtesy and will insist that others do likewise. Cannon 3 (B)(4) of the Ohio Code of Judicial Conduct says: A judge shall be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, and others with whom the judge deals in an official capacity and shall require similar conduct of lawyers, and of staff, court officials, and others subject to the judge s discretion and control. It is respectfully submitted that the ABA Guidelines For Litigation Conduct, Court s Duties to Lawyers (enclosed) is a far more meaningful Judicial Creed. It states: COURT S DUTIES TO LAWYERS 1. We will be courteous, respectful, and civil to lawyers, parties, and witnesses. We will maintain control of the proceedings, recognizing that judges have both the obligation and the authority to insure that all litigation proceedings are conducted in a civil manner. 2. We will not employ hostile, demeaning, or humiliating words in opinions or in written or oral communications with lawyers, parties, or witnesses. 3. We will be punctual in convening all hearings, meetings, and conferences; if delayed, we will notify counsel, if possible. 4. In scheduling all hearings, meetings and conferences we will be considerate of time schedules of lawyers, parties, and witnesses. 5. We will make all reasonable efforts to decide promptly all matters presented to us for decision. 6. We will give the issues in controversy deliberate, impartial, and studied analysis and consideration. 7. While endeavoring to resolve disputes efficiently, we will be considerate of the time constraints and pressures imposed on lawyers by the exigencies of litigation practice. 8. We recognize that a lawyer has a right and a duty to present a cause fully and properly, and that a litigant has a right to a fair and impartial 10

11 hearing. Within the practical limits of time, we will allow lawyers to present proper arguments and to make a complete and accurate record. 9. We will not impugn the integrity or professionalism of any lawyer on the basis of the clients whom or the causes which a lawyer represents. 10. We will do our best to insure that court personnel act civilly toward lawyers, parties, and witnesses. 11. We will not adopt procedures that needlessly increase litigation expense. 12. We will bring to lawyers attention uncivil conduct which we observe. JUDGES DUTIES TO EACH OTHER 1. We will be courteous, respectful, and civil in opinions, ever mindful that a position articulated by another judge is the result of that judge s earnest effort to interpret the law and the facts correctly. 2. In all written and oral communications, we will abstain from disparaging personal remarks or criticisms, or sarcastic or demeaning comments about another judge. 3. We will endeavor to work with other judges in an effort to foster a spirit of cooperation in our mutual goal of enhancing the administration of justice. 5. PROFESSIONALISM VIGNETTES: THE FOLLOWING VIGNETTES MAY BE TRUE. THE NAMES HAVE BEEN CHANGED. 1. Plaintiff s lawyer serves discovery request on defendant. Defendant does not respond. Plaintiff s lawyer writes to defendant s lawyer requesting a response. Defendant does not respond, so plaintiff s lawyer files a motion to compel discovery. Court holds a hearing. At the hearing, the Court says, This discovery problem is yours, not mine. Work it out or I will fine each of you $ Court holds a pre-trial conference. It is held in the courtroom and members of the public, including news media representatives, are present. The Court asks defendant counsel, So you want the Court to do A and B and C, correct? Defense counsel responds, No Sir, we seek only A. The Court barks, Don t argue with me young man, or I ll throw you in jail. 11

12 3. Plaintiff files a personal injury claim against defendant. Defendant is insured by Big Bucks Liability Insurance. Big Bucks hires Attorney Smith to represent defendant, and instructs Smith as follows, We see too many of these cases from plaintiff s attorney and from plaintiff s in general. Make the other lawyers life difficult, and don t be too nice to his client either. If you have any trouble with this instruction, tell us and we will get somebody else to handle this case. 4. Same facts as 3, above. Smith is obnoxious to plaintiff s lawyer and his staff. In fact, two staff members complain about Smith to plaintiff s lawyer. Plaintiff s lawyer writes to Smith and nicely asks him to please stop being so difficult. The Court holds a pre-trial. At the pre-trial, Smith ( a local lawyer) starts yelling at plaintiff s lawyer (who is not local) in the presence of the Judge. Plaintiff s lawyer tells Smith he must stop being rude. The Judge screams at plaintiff s lawyer, I m running this pre-trial and you will listen to anything Smith says until I say otherwise. 5. Court holds a pre-trial for the purpose of identifying the issues that are in dispute, and scheduling discovery. Court asks plaintiff s counsel how much time he needs for discovery. Plaintiff s counsel responds by saying that depends on what issues are in dispute and, I understand that you are going to admit liability Mr. Defense Counsel. Is that correct or incorrect? Defense counsel harshly responds, I don t have to tell you what we admit and what we don t admit. Plaintiff s lawyer says, I m just trying to figure out what you position is going to be regarding liability. Defense counsel responds, That s for me to know and you to find out. The Court remains silent. 6. Defense counsel asks plaintiff s counsel for a seven-day extension to file a Reply Brief so that defense counsel can attend his daughter s medical school graduation. Plaintiff s counsel responds, No way. Why should I give you any advantage in this case? 7. During deposition of plaintiff, defense counsel takes a harsh tone while questioning the plaintiff. 8. Final pre-trial conference is held in a personal injury case. During the pre-trial plaintiff s counsel asks defense counsel if she will waive the Evidence Rule 803(b) hearsay objection regarding medical bills and records. She says no. Plaintiff s counsel says, Why not? If you don t we will need to call thirteen extra witnesses. Defense counsel responds, The insurance company that is paying me does not want me to waive that objection. The Judge remains silent. 9. Pre-trial is held. Six lawyers are in attendance. At the conclusion of the pre-trial, lawyer number six says the following to the Judge, Hey Bob. What time do we tee-off on Saturday morning? 10. One member of a three-member arbitration panel comes to the arbitration. He is not wearing a jacket or a tie. 12

13 11. Lawyer runs TV ad that says, You pay us no money at all unless we recover money for you, and we will provide you with the most aggressive, hardnosed legal representation you can imagine. 12. A sues B. A wins. Local newspaper writes editorial saying A won because his slick lawyer scammed the Court. B s lawyer knows of no such scam, or of any improper conduct by A or his lawyer. 13. Plaintiff s medical negligence suit is scheduled for trial on November 15 th. On November 10 th, plaintiff s lawyer decides to file a Civil Rule 41 (A) dismissal, but does not tell defense counsel of his plan until November 14 th. 14. Court holds a pre-trial to discuss the progress of the case, and possible settlement. Defense counsel attends and says, Even though we have a considerable amount of documentation from the plaintiff, and liability is not vigorously disputed, we make no offer of settlement because the plaintiff s ER bill did not contain any CPT code. 15. Court holds a pre-trial. During the pre-trial the judge says, I don t like the Ohio Supreme Court s decision in X v. Y and the judges that voted for it should be shot. I d like to kill those judges. 16. Before trial, plaintiff says, Defense counsel is a jerk and I m going to tell him he is a no good jerk. Plaintiff s lawyers respond, That is okay with me. 17. Shortly before trial, plaintiff s counsel phones defense counsel and says, Please let me know what witnesses you will probably call at trial, and how long you estimate their testimony will probably take. Defense counsel says, No way, I don t have to tell you that. 18. Plaintiff sues defendants 1, 2 and 3. Lawyer for defendant 3 phones plaintiff s counsel and says, Drop my client from this case or I will go through your client s life, and especially his financial records, with a fine-tooth comb. 19. The parties agree to settle the case per terms A, B, C, and D. Defense counsel drafts settlement papers, which state, This case is settled per terms A, B, C, but not D. 20. All counsel ask the court to hold a preliminary pre-trial by phone. The Court says it will not even consider the request. 13

14 6. PROFESSIONALISM SURVEY (Please Print) 1. How many years have you been practicing law? 2. Generally, in what area(s) do you practice? 3. What are the three (3) most common professionalism problems that you have personally observed? 4. What topics would you like to see discussed at professionalism seminars? OPTIONAL (Please Print) NAME: ADDRESS: PHONE: Please return to Bill Mann, 580 S. High St., Suite 200 Columbus, OH We welcome your comments. Use additional pages if necessary. 14

15 7. CONCLUSION Please let us know if you have any questions or comments regarding the above materials, or if you have a professionalism, substance abuse or legal ethics question. We will try to help you, or refer you to somebody who can. Thank you. William Mann Mitchell, Allen, Catalano & Boda Co LPA 580 South High Street, Ste. 200 Columbus, OH Phone: (614) Fax: (614)